There’s a logical leap in Carmelo Mifsud Bonnici’s article in today’s Times (The burden of public interest on indissolubility of marriage) that has escaped the attention of the many anti-divorce campaigners who have been linking the article all over facebook. CMB is eager to explain the stake the state has within the boundaries of private marriage – he has to be clear why the state believes in the tool of indissolubility as being the best bet for civil society’s sanity. To get to the point of arguing on the importance of indissolubility of marriage for the public interest, CMB has to justify the interference of the state in the first place: why does the state care whether or not marriage can be dissolved or not?
Aha. And that is where the quick gloss by CMB is glaringly obvious. CMB tells us:
The state should not in any way be involved in the decision to enter into that union and in the choice of marriage partners. The state registers a marriage and recognises certain rights of the parties.
This is not to say that the state has no stake in the stability of marriage, because it is within stable marriages that its future citizens are nurtured and brought to maturity in the best possible way and because the spouses in a stable marriage are not distracted unduly from their normal civilian working life.
Q.E.D. right? Not really. If you really were to follow CMB’s logic to its conclusion then the first part of his statements is built on a deceitful assertion. The state cannot suddenly develop an interest in the success or otherwise of a marriage ONLY once it has been sealed. CMB feigns a passive role of the state until the marriage union is sealed – it recognises the union and certain rights of the parties. Then – only then – according to CMB does the state develop a stake in the stability of marriage. This stake is supposedly because the spouses should not be distracted unduly from their civilian working life.
Why not before the union then? What stops the state from ensuring that its stake in the civil union is safeguarded? How? Well by making sure that its citizens about to engage in the union are fully prepared to do so – that they can guarantee a stable marriage that “nurtures and produces the maturity that does not distract from their civilian working life”.
If CMB were serious about the role of the state as he describes it, then his kind of logic would lead to marriage permits and marriages being sanctioned by the state. The state would be able to tell you whether or not you are allowed to marry in the first place – based on suitability. If the state’s role is in trying to ensure the stable, mature etc marriage then it should do so in full. Imagine that. Imagine criteria for stable marriages – the certificate of a suitable wife and husband who will contribute to society.
It would not work would it? And maybe that’s the very same reason why the state has no business imposing indissolubility on the marriage contract. It cannot decide for the parties if they are willing to move on and try again. CMB’s logic is false because it is built on a false assertion about the motives of the state. The problem of CMB is that his logic is in a twist because no amount of legal philosophy will justify the denial of divorce rights. He cannot declare his ultimate motivation at the end of the day because it has nothing to do with laws and civic duty. It is a fettered discretion based on his private beliefs.
12 replies on “CMB and the Marriage Certificate”
[…] This post was mentioned on Twitter by Jacques Rene Zammit, Aron Mifsud Bonnici. Aron Mifsud Bonnici said: RT @jacqueszammit: CMB and the Marriage Certificate http://f.ast.ly/yhXEe #Malta #divorce […]
I think you failed to understand elementary logic.
The spouses have the right to marry and found a family. However marriage has both a private as well as a public dimension and is therfore recognized by the State and has its legal effects.
It is also the duty of the State to educate its citizens on the rights and duties of marriage and to protect the stability of the family.
“The family is the natural and fundamental group unit of society and is entitled to protection by society and the State”.
The State therefore has the right and the duty to take measures in favour of and to protect marriage stability, including marriage preparation courses and assistance to families who have difficulties. Such marriage preparation courses already exist http://www.twogetherintexas.com/UI/HomePage.aspx
The only failure, David, is your blissful ignorance of the point and inability to conceive of the idea that once you start toying with the notion that the state can interfere in marriages to “educate its citizens on the rights and duties of marriage” then you either do so properly or nothing. The smokescreen of the state’s duty would only work if it used it from the start i.e. by ensuring that only people who fulfil god knows what standard the state might invent are allowed to marry.
You can see it no? It would start with drug addicts, prodigals, miscreants then we would move on to people who are not gainfully employed and do not earn sufficient fund to financially support a family. Where should we draw the line David? Why is the state so cynically cruel as to allow people into the indissoluble trap of marriage only to start worrying about their welfare after? Why not prevent the breakdown by certifying them “marriageable” before eh Dave? Why is the State shedding its responsibility then?
Why not move further then? Why not have couples apply for conception – that way we could control who has babies for the common good. And where would we stop there David? Couples with history of genetically transmitted illness would be disqualified no?
The failure David, is that of people like you and CMB from coming clean. You try to hide behind some legal philosophy excuse of duty vs common good but if you were to really apply that duty we all know it would be an impractical society – and an unjust one. The solution stares CMB and you in the face. At the point of irretrievable breakdown indissolubility is not an anchor to keep something safe in a harbour but a ball and chain to keep a couple firmly imprisoned in a chain of unhappiness. No amount of marriage preparation courses can help you wriggle out of that one at that point. Divorce , on the other hand, recognises the possibility of a second chance.
Good night, and good luck.
David. There is no question that steps must be taken to protect the family. But the question of divorce does not presume healthy families. It deals with those unfortunate couples whose marriage has broken down, and therefore, are not a family anymore.
These separated couples often form what are known as “de facto families” which are unregulated and unrecognised, and can therefore lead to dangerous consequences and abuse, apart from the legal uncertainty they produce. Legal uncertainty is dangerous for society.
What steps do you propose to be taken with regard to those couples whose marriage has irretrievably broken down and form, or wish to form, a “de facto family”?
Not all separated persons form what you call de facto families. However you miss the point.
It is said that hard cases make bad law. The aim of law is the common good of all society. As our law states the law promotes the unity and stability of the family.
These aims are not promoted by divorce legislation which recognizes and increases mariage breakdown, as has been shown by the experience of other countries (and as is stated in the study on the effects of divorce legislation on divorce rates in Europe by Gonzales and Viitanen). Besides second marriages tend to be less stable than first marriages.
Naturally for the cases you mention there is no real remedy. There can be some solutions as declarations of the nullity of marriage, separation proceedings and some sort of ad hoc legislation regarding cohabitation or civil unions as has been suggested also in Malta though I have some reservations on the latter.
I heard today that in France two out of every three marriages break up. I do not know if this is an exact figure. However is this our ideal society? Is increased marriage and family breakdown not more dangerous to society than the abstract concept (and in this context misleading)of legal uncertainty?
Statistics. Statistics. Statistics.
Basically if you have divorce and the possibility of a second marriage then the numbers break even. For every divorce you can have a second marriage – thus inflating the numbers of marriages (happy) almost proportionally to the number of divorces (sad).
What is impressive is that you are adamant against allowing a new marriage but then would legislate for flimsy cohabitation or civil unions.
Hawwadni ha nifmhek.
Well you may conveniently disregard the facts staring in your face till kingdom come. That way you will surely arrive at your conclusion easily. Reallu hawwadni ha nifhmek.
Regarding legislation on cohabitation or civil unions, I repeat I am not convinced of this, but only mentioned this in the context of the “steps proposed”. The legislation suggested has I think not yet been drafted.
Neither you nor Simon however dealt with the main thrust of Dr Mifsud Bonnici’s argument on the public interest of the State in upholding marriage stability.
Since this point is not disputed, I can consider this argument to be sound.
Good night.
I had to double check whether I wrote in Greek. Of course I dealt with the public interest of the state upholding marriage stability… I actually called CMB’s (and your bluff). If you really believe state has a n interest in upholding marriage stability then why not regulating who can marry whom and who can procreate? How far are we from eugenics at that point?
Digging your head deeper into the sand only makes you like an ostrich but the questions won’t go away. Your argument is as sound as a crazy hyena. Good night.
Well you may also persistent in ignoring elementary logic.
I had clearly explained the point that the State can take measures to protect marriage stability even before marriage. I imagine one of the subjects dealt with in the so called life skills programme in schools deals with this or similar issues. This in no way diminishes the rights of the couple to marry, as Dr Mifsud Bonnici stated.
You again persist in ignoring the main argument, that is whether it is beneficial to the state that marriages and the family are stable.
Since you do not really dispute the state’s interest in marriage stability, but only raise illogical arguments (a sort of fallacy of the general rule or reductio ad absudrdum) which do not necessarily follow the principle stated, your so called arguments only confirm that the main point in Dr Mifsud Bonnici’s article is not disputed.
David,
I don’t know how, from the Gonzalez and Viitanen study you conclude that divorce increases marital breakdown.
What that study concluded is that the introduction of no fault divorce legisaltion accounts for 20% increase in divorce rates over previous “fault” regimes.
Which means that it’s a finding that’s not applicable to Malta’s case because it won’t be a case of going from one divorce regime to another.
And now to Jacques.
This post has one of the oddest arguments you have ever made. I can’t see how a claim that the “state has a stake in the stability of marriages” should in any way mean the state decide who gets married and who doesn’t.
The evidence is pretty much all around you. States which allow divorce are concerned about the state of the marriages of the societies they are responsible for. They are concerned as a matter of public policy in the same way they are concerned about cigarette smoking (without their banning tobacco) or obestity (without forcing everyone to eat salads and exercise).
What would be flawed (the case with Mifsud-Bonnici’s reasoning) is to think that policy has the same effect as law. It doesn’t and I can’t pour enough scorn on the idea.
CMB’s argument is basically an extension of Edwin Vassallo’s observation that ‘what happens in the bedroom is the state’s concern’. We would all be a good deal better off if CMB, Vassallo et al keep their noses well out of other people’s private affairs.